George D. Collins v. Thomas F. O'NeilSource: The American Journal of International Law, Vol. 3, No. 3 (Jul., 1909), pp. 747-752Published by: American Society of International LawStable URL: http://www.jstor.org/stable/2186702 .

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DECISIONS INVOLVING QUESTIONS OF INTERNATIONAL LAW 747

ART. VI. Dr. Bonilla proposed that there be added to the article the phrase: " unless it has been impossible for them to do so." After a debate participated in by Messrs. Madriz, Ugarte, Rodriguez, Batres Jauregui, Gallegos, and Ander- son, the session was suspended at 11.50 A. M.

ART. II. The session having been resumed at 12.15 P. M., article II was put to a vote, with the addition proposed by Dr. Bonilla. The delegations from Nicaragua and Honduras voted for the article as thus amended, while those from Costa Rica, El Salvador, and Guatemala voted to approve the article without the addition.

And whereas: By virtue of the vote taken on the case on February 10 last, it was

decided by the court that the complaint in this suit could not be admitted because it did not fulfill the final condition provided in article II of the aforementioned convention.

Therefore: The Central American Court of Justice, in accordance with the doc-

trines set forth and applying the rule contained in article II of the Washington Convention, as referred to,

Decides: First. The said complaint is declared inadmissible because this court

lacks jurisdiction in the case as it has been presented. Second. Let this decision be communicated to the governments of

Central America. JOSE ASTuA AGUIIAPR. ANGEL M. BOCANEGRA.

ALBERTO UCLES. FRANCISCO MARTINEZ S.

JOSE MADRIZ. ERNESTO MARTIN, Sec.

GEORGE D. COLLINS V. THOMAS F. O'NEIL

Supreme Court of the United States

May 17, 1909

On July 13, 1905, an indictment was found by the grand jury of San Francisco County, California, against Collins, charging him with the crime of perjury, alleged to have been committed in San Francisco on June 30 of that year. He not being found within the state, it was subsequently discovered was in Victoria, British Columbia, and proper demand, under the treaty between the United States and Great Britain, being made for his surrender upon that indictment for trial, he was, on October 7, 1905, duly surrendered, and removed from Victoria by one

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748 THE AMERICAN JOURNAL OF INTERNATIONAL LAW

Gibson, the agent designated in the Canadian extradition warratit, to San Francisco, where he was placed in the custody of the then sheriff, who also had a bench wararnt issued from the Superior Court on the perjury indictment against said Collins.

His trial upon the indictment upon which he had been extradited began in San Francisco in December, 1905, and resulted in the disagree- ment of the jury on the 23d of December of that year, and the case was then continued, to be thereafter reset for trial. Upon the trial of the indictment for which Collins was extradited he was himself sworn, and testified as a witness, and on the 29th of December, 1905, after he had given such evidence, he was indicted again by the grand jury of San Francisco County, the indictment charging him with perjury committed on December 12, 1905, while testifying on his own behalf on the trial, as already stated. He was arraigned on this indictment in January, 1906, and after he had made all objections to his being arraigned or placed on trial on this second indictment until the conclusion of the first, and until he had then been afforded opportunity to return to Victoria, he was, nevertheless, brought to the bar and the trial proceeded with, resulting in a verdict of guilty on February 27, 1906, upon which judgment was entered that he be imprisoned in the state prison for the term of fourteen years.

From that judgment he appealed to the District Court of Appeals of California, where it was affirmed, and thereafter he applied to the State Supreme Court for a rehearing by that court, which was denied. People v. Collins, 6 Cal. App. 492; s. c., 92 Pac. Rep. 513.

Thereupon Collins, being restrained of his liberty, as well under the judgment of conviction, as otherwise under the extradition warrant, applied to the State Supreme Court for a writ of habeas corpus, con- tending that his conviction and sentence were void and in excess of the jurisdiction of the state court, as being in contravention of his extradi- tion rights under the treaty between the United States and Great Britain, and section 5275 of the United States Revised Statutes, set forth in the margin.'

1 U. S. R. S., section 5275; 3 U. S. Compiled Statutes, page 3596. " Whenever any person is delivered by any foreign government to an agent of the United

States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take

all necessary measures for the transportation and safekeeping of such accused person, and for his security against lawless violence, until the final conclusion

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DECISIONS INVOLVING QUESTIONS OF INTERNATIONAL LAW 749

The writ was issued and a return made, denying many of the allega- tions of the petition, and, after hearing, it was finally dismissed, and Collins remanded to the custody of the sheriff. 154 Fed. 980.

OPINION

Mr. Justice PECKKHAM delivered the opinion of the court. The objections which the- plaintiff in error [Collins] urges to his

further imprisonment are founded upon what he insists is implied from the provisions of the treaties between the United States and Great Britain, (1842-1889,) and he contends that under those treaties the state of California had no right or jurisdiction to try him for any offense whatever other than the one for which he was extradited and delivered to the government of the United States for trial, even though he committed an offense subsequently to the extradition, and he further asserts that after a trial has been had for the offense for which he was extradited, he is entitled to be afforded reasonable time and opportunity after his final release on that charge to return to the country of asylum, and that the trial of the crime for which he was extradited must be had within a reasonable time after his extradition, or he is for that reason entitled to his discharge. In other words, the plaintiff in error [Collins] claims immunity, under the treaties, from arrest or detention for any crime committed by him after he has been brought back upon the extradition warrant until he has been allowed a reasonable time to return to the place from which he was taken. He contends that the duty originally resting upon the demanding country to try him only for the offense for which he was extradited and to then afford him reasonable opportunity to return, is unaffected by the fact that he committed another crime after his extradition.

The treaty of 1842, August 9, 8 Stat. 576, sec. 10, is the one in regard to which discussions as to its meaning have arisen. United States v. IRauscher, 119 U. S. 407. Subsequently to the treaty, Great Britain passed the extradition act of 1870, 32 and 33 Victoria, chapter 52: and also in 1873 an act to amend the extradition act of 1870, 36 and 37 Victoria, chapter 60. Both these acts are cited as the extradition acts of

of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land or naval forces of the United States, or of the militia thereof, as may be necessary for the safekeeping and protection of the accused."

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750 THE AMERICAN JOURNAL OF INTERNATIONAL LAW

1870 and 1873. See 1 Moore on Extradition, (1891) pages 741, 755. In subdivision 2 of section 3 of the act of 1870 it is provided:

(2) A fugitive criminal shall not be surrendered to a foreign state unless pro- vision is made by the law of that state, or by arrangement that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign state for any offense committed prior to his surrender, other than the extradition crime proved by the facts on which the surrender is grounded.

Article 3 of the treaty or convention of 1889, July 12, between Great Britain and the United States is to be found in 26 Stat. 1508-9, and is also, among others, set out in 205 U. S. 309, 319, as follows:

Article III. No person surrendered by or to either of the high contracting par- ties shall be triable or be tried for any crime or offense, committed prior to his extradition, other than the offense for which he was surrendered, until he shall have had an opportunity of returning to the country from which he was sur- rendered.

The treatment of the criminal for all acts committed or said to have been committed by him prior to extradition is thus fully provided for.

The contention of the plaintiff in error [Collins] that the duty to afford opportunity to return after a trial or other termination of the case upon which he was extradited is unaffected by any subsequent crime he may have committed, is not even plausible. Nothing in the Rauscher case (supra) is authority for any such contention. The duty to afford opportunity to return after trial, as stated, is limited to matters which happened before extradition. and in the nature of things such duty can not be extended by implication so as to cover a totally different state of facts. Because, in some cases, in construing the treaty, it has been stated that a person extradited can be tried only for the offense for which he was surrendered for trial until he has had an opportunity of returning, it is assumed by the plaintiff in error [Collins] that such language prohibits the trial of a person so extradited for any crime committed by him subsequently as well as prior to the surrender, without an opportunity for his return to the other country. The whole question is simply one as to the meaning of the treaty, and we can not doubt for a single moment what that meaning is.

Much is said by the plaintiff in error [Collins] as to his right to an asylum as if it inhered in himself. The right is, however, simply pro- vided for by treaty, and must be found therein, so far alone as the criminal is concerned.

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DECISIONS INVOLVING QUESTIONS OF INTERNATIONAL LAW 751

The question then is, does either the treaty or convention, by express provision or by inference, provide for a return of the criminal to the surrendering country after his surrender and after a subsequent com- mission of a crime in the country to which he was surrendered? To ask the question is to answer it. The plaintiff in error [Collins] con- tends for the treaty right to leave the country, notwithstanding his com- mission of the subsequent crime. This we can not assent to. It is impossible to conceive of representatives of two civilized countries solemnly entering into a treaty of extradition, and therein providing that a criminal $urrendered according to demand, for a crime that he has committed, if subsequently to his surrender he is guilty of murder or treason or other crime is, nevertheless, to have the right guaranteed to him to return unmolested to the country which surrendered him. We can imagine no country, by treaty, as desirous of exacting such a con- dition of surrender or any country as willing to accept it. When a treaty or statute contains a provision that the party surrendered shall be tried for no other offense until he has had an opportunity to leave the country, the meaning of such a provision is perfectly plain, and must receive a reasonable and sensible construction. The party proceeded against must not be tried for any other offense existing at the time when he was extradited, (whether at the time of such extradition it had or had not been discovered,) until he shall have had a reasonable time to return to the country from which he was taken, after his trial or other termina- tion of the proceeding. That such privilege should be accorded to one who commits a crime after his surrender to a demanding government lacks all semblance of reason or sense.

Spear in the second edition of his work on the Law of Extradition says, at page 84, that the party extradited is not "protected against trial for any offenses which he may commit against the receiving govern- ment subsequently to his extradition, and while in its custody, or after his discharge therefrom * * * ." Such a criminal has no asylum, because he never had an asylum within the jurisdiction of the govern- ment delivering him, with regard to the crime which he committed since such delivery. Spear, Id. Id.

The contention is also without merit that he has, at any rate, the right to a trial to a conclusion of the case for which he was extradited, before he can be tried for a crime subsequently committed. The matter lies within the jurisdiction of the state whose laws he has violated since his extradition, and we can not see that it is a matter of any interest to the surrendering government.

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752 THE AMERICAN JOURNAL OF INTERNATIONAL LAW

There is nothing in the section of the U. S. R. S. supra which gives the least countenance to the claims of the plaintiff in error.

The other objections made by him in regard to the person who now has him in custody under the various warrants and processes, copies of which are returned in the record, we regard as unimportant.

As soon as the judgments herein are affirmed the plaintiff in error will, of course, pursuant to the judgment entered upon the verdict of con- viction against him, be taken to the state prison in California, provided for in the sentence, and there confined according to law. The orders and judgments in the two cases 2 are

Affirmed.

2 The two cases were (1) writ of error from Sujpreme Court of California for refusing habeas corpus; (2) appeal from U. S. Circuit Court for the Northern District of California for refusing habeas corpus.

AUGUSTA C. MATHER V. EDWARD R. CUNNINGHAM

Supreme Judicial Court of Maine

April 15, 1909

SPEAR, J. This is an appeal from the decree of the Probate Court for Waldo County, dated September 11th, 1906, appointing Albert W. Cun- ningham administrator of the estate of Henry H. Cunningham, deceased, and comes here on report. The agreed facts show that Henry H. Cun- ningham was born in 1838 in Swanville, County of Waldo, Maine, of parents who were citizens of the state of Maine and resident and domiciled in said county and state. His parents continued to reside in Waldo County, Maine, until 1865, when they removed to Manassas, Virginia. He resided with his parents in this state continuously from his birth until May 3, 1853, the last three years at Belfast, Maine. In May, 1853, at the age of fifteen he went to sea. In 1854 he went to Australia. About 1857 he was for a time a pilot on the river at Shanghai, China. He was never married and at the time of his death his only heirs and next of kin were two brothers and two sisters. He died at Shanghai June 10th, 1905, leaving an estate of personal property valued at over $50,000. He left a will in which he undertook to dispose of his estate, executed in the presence of two witnesses. After his deathi pro- ceedings were had before the United States Consul at Shanghai, China, for the settlement and distribution of his estate, and the various legatees

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